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Report of the Working Party on the Review of the Labour Tribunal

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Report of the Working Party on the Review of the Labour Tribunal CONTENTS CHAPTER ONE – INTRODUCTION .............................................................1 I. Establishment of the Working Party ................................................1 II. Background ......................................................................................1 III. The Work of the Working Party .......................................................2 IV. Scope of the Review.........................................................................3 V. The Report........................................................................................3 CHAPTER TWO – THE SET-UP, PRACTICE AND PROCEDURE OF THE LABOUR TRIBUNAL .......................................................................4 I. The Set-Up of the Tribunal ..............................................................4 A. Registry..................................................................................4 B. Tribunal Officers....................................................................4 C. Presiding Officers ..................................................................5 II. The Staffing and Location of the Tribunal.......................................6 III. Jurisdiction of the Tribunal ..............................................................6 IV. Processing of Claims in the Tribunal ...............................................8 A. Filing Claims..........................................................................8 B. Inquiries by Tribunal Officers................................................8 C. Hearings in the Tribunal ......................................................10 (1) Call-over Hearing ......................................................10 (2) Pre-trial Hearings.......................................................11 (3) Trial............................................................................12 D. Restoration of Claim............................................................12 E. Setting Aside and Review of Award ....................................12 V. Procedure in the Tribunal...............................................................13 VI. Appeals from the Tribunal .............................................................14 - i - VII. Enforcement of Tribunal Award.....................................................15 CHAPTER THREE – CASES BEFORE THE TRIBUNAL AND TIME TAKEN FOR DISPOSAL OF CASES ................................................16 I. Caseload, Claim Items and Value of Claims..................................16 II. The Case Nature.............................................................................16 A. Increased Complexity ..........................................................16 B. Repeal of Section 9 of the Ordinance..................................17 C. Wide Range of Claims .........................................................17 D. Number of Parties ................................................................18 E. Caseload and the Economic Situation .................................18 III. Waiting Time of the Tribunal .........................................................19 A. From Appointment to Filing ................................................19 B. From Filing to Call-over Hearings ......................................19 C. From Call-over Hearings to Trial ........................................19 D. Overall Time Taken for Concluding a Claim from Date of Filing................................................................................20 IV. Modes of Disposal of Claims.........................................................20 V. Overall Time Taken for Adjudicated Claims .................................21 CHAPTER FOUR – EXPERIENCE IN OTHER JURISDICTIONS IN RESOLVING EMPLOYMENT DISPUTES ............................................22 I. Scope of the Research ....................................................................22 II. Australia .........................................................................................22 A. Federal Level: The Australian Industrial Relations Commission .........................................................................22 B. State Level : The Example of New South Wales.................23 III. New Zealand ..................................................................................24 A. Independent Mediation Services under the Department of Trade ................................................................................25 - ii - B. The Employment Relations Authority.................................25 C. The Employment Court .......................................................26 D. The Court of Appeal ............................................................27 IV. England...........................................................................................27 A. The Employment Tribunals .................................................28 B. The Employment Appeal Tribunal.......................................29 C. The Advisory Conciliation and Arbitration Service ............29 V. Canada............................................................................................30 A. The Ontario Labour Relations Board ..................................31 B. Judicial Review before an Ontario Court ............................32 VI. Observations...................................................................................33 A. Conciliation and Mediation .................................................33 B. Adjudication.........................................................................33 C. Appeals ................................................................................34 CHAPTER FIVE – REVIEW AND RECOMMENDATIONS ....................35 Section I. The Jurisdiction of the Tribunal...........................................36 A. Claim for a Sum of Money ..................................................36 B. MPF Contributions and Claims under the MPFSO.............38 Section II. The Tribunal Process ...........................................................42 A. Overview..............................................................................42 B. Settlement of Claims............................................................42 (1) Concerns ....................................................................42 (2) The Present Position..................................................43 (3) An Integral Part of the Tribunal Process ...................43 (4) The Number of Attempts at Settlement.....................45 C. The Appointment System.....................................................48 D. Efficiency and Effectiveness of the Process........................52 (1) Concerns ....................................................................52 (2) Supply of Background Information...........................54 - iii - (3) Prior Guidance and Information................................55 (4) Section 13(1) of the Ordinance .................................56 (5) Arrangements for call-over hearings.........................59 (6) Compliance with Directions......................................60 (7) Early Disclosure of Information................................62 (8) Managing the Hearings and the Trial ........................64 (8)(a) Pro-active Case Management.........................64 (8)(b) Witness Statements.........................................65 (8)(c) Fewer Pre-trial Hearings ................................66 (8)(d) Listing of Part-Heard Cases ...........................66 (8)(e) Sanctions ........................................................67 (9) Review and Applications to Set Aside ......................67 (10) Implementation of Recommendations.......................68 Section III. Costs on Appeal ...................................................................70 A. The Statutory Position .........................................................70 (1) Costs before the Tribunal...........................................70 (2) Costs on Appeal.........................................................70 B. The Present Position ............................................................71 (1) Costs before the Tribunal...........................................71 (2) Costs on Appeal.........................................................71 C. Proposals Relating to Costs on Appeal................................72 D. The “Capped Costs” Proposal .............................................73 E. The “No Order as to Costs” Proposal..................................75 Section IV. Enforcement of Awards........................................................76 A. The Present Position ............................................................76 B. The Proposed Changes.........................................................76 C. Other Matters .......................................................................77 Section V. Training for Presiding Officers and Tribunal Staff..............79 A. Presiding Officers ................................................................79 B. Tribunal Officers..................................................................80 C. Registry Staff .......................................................................82 - iv - Section VI. The Premises and Location of the Tribunal.........................84 A. The Present Position ............................................................84 B. Concerns ..............................................................................84 C. Proposal................................................................................85
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